Citation Nr: 0432100
Decision Date: 12/03/04 Archive Date: 12/14/04
DOCKET NO. 03-12 223 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to an increased disability rating for a wound
to the right thigh (Muscle Group XIII), currently evaluated
as 10 percent disabling.
2. Entitlement to an increased disability rating for a wound
to the left leg (Muscle Group XII), currently evaluated as 10
percent disabling.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. Cramp, Associate Counsel
INTRODUCTION
This case comes before the Board of Veterans Appeals (the
Board) on appeal from an October 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Cleveland, Ohio (the RO).
Procedural history
The veteran served on active duty from November 1942 to
February 1946.
The veteran was granted service connection for the right
thigh and left leg disorders in a February 1947 rating
decision, at which time 10 percent disability ratings were
assigned for each.
In May 2002, the RO received the veteran's claim of
entitlement to an increase in the disability ratings assigned
his right thigh and left leg disorders. In an October 2002
rating decision, the RO denied the claims. The veteran
disagreed with the October 2002 rating decision and initiated
this appeal. The appeal was perfected with the timely
submission of the veteran's substantive appeal (VA Form 9) in
March 2003.
In a December 2003 letter, the veteran through his
representative maintained that there was clear and
unmistakable error (CUE) in the February 1947 rating decision
that initially assigned a 10 percent disability rating for
the left leg disorder. The issue of whether there was CUE in
the February 1947 decision has not yet been adjudicated by
the RO, and it is therefore not before the Board on appeal.
It appears from the record that the RO has recognized this
additional claim and has begun development.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC) in Washington, DC. VA will notify the veteran
if further action is required on his part.
REMAND
In correspondence received in November 2004, the veteran
indicated that he wished to have a videoconference hearing
before a Veterans Law Judge at the RO. It is the veteran's
right to have a hearing. The Board is of course cognizant
of the requirements of 38 C.F.R. § 20.1304 (2004), concerning
out-of-time requests for hearings after an appeal has been
certified to the Board. Such is the situation here.
However, the law places great significance on personal
hearings. See 38 C.F.R. § 3.103, 20.700 (2004). In
addition, the CUE claim referred to in the Introduction has a
potential bearing on one of the two issues which are
currently on appeal.
In the interest of judicial economy, the Board believes it
best if all issues are considered by the agency of original
jurisdiction together. Cf. Harris v. Derwinski, 1 Vet. App.
180, 183 (1991) [the prohibition against the adjudication of
claims that are inextricably intertwined is based upon the
recognition that claims related to each other in the
prescribed degree should not be subject to piecemeal
decision-making or appellate litigation].
For the reasons stated, this case is REMANDED to VBA for the
following action:
VBA should schedule the veteran for a
videoconference hearing before a Veterans
Law Judge, in accordance with applicable
law. A copy of the notice scheduling the
hearing should be placed in the claims
folder. Thereafter, the case should be
returned to the Board for further
appellate review.
The Board intimates no opinion, either factual or legal, as
to the ultimate conclusion warranted in this case. No action
is required by the veteran until he is contacted.
The veteran has the right to submit additional evidence and
argument on the matters the Board has remanded. See
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board for
additional development or other appropriate action must be
handled in an expeditious manner. See The Veterans Benefits
Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat.
2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112).
_________________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).